Summary: There was fault and delay by the Council in failing to update Education, Health and Care plans after annual reviews and failing to ensure a child received suitable fulltime education over several years. There was also fault in the complaint handling and poor communication. This caused loss of education and unnecessary distress, uncertainty, time and trouble to the family. The Council will apologise, make symbolic payments, and service improvements. The complaint is upheld.

The complaint

1. Ms X complains on her own behalf and on behalf of her son, Y. Ms X complains:
• Y was on a part-time timetable at school between September 2021 and Easter 2023, when Y stopped attending school;
• Y was out of education from Easter 2023 to Autumn 2024;
• The Council failed to update Y’s Education Health and Care (EHC) Plan and kept it in draft for two years;
• The Council refused to add recommendations to the EHC Plan;
• The Council delayed providing a personal budget for educational activities outside of school.
2. As a result of the alleged fault, Ms X says:
• Y missed out on education and made little to no progress;
• Y was socially isolated and became very dependent on Ms X, this also had an impact on siblings;
• Y being out of education affected Ms X’s ability to work, she had to rely on family members to help out;
• The delays have caused unnecessary time, trouble, uncertainty and frustration;
• Ms X was denied a right of appeal due to the EHC Plan not being updated.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.

5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

6. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
7. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. We cannot investigate most complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(2), as amended)
10. Before considering a complaint, the Ombudsman should be satisfied the Council has had an opportunity to investigate and respond to a complaint. (Local Government Act 1974, section 26(5))
11. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
12. An organisation should not adopt a blanket or uniform approach or policy that prevents it from considering the circumstances of a particular case. We may find fault in the actions of organisations that ‘fetter their discretion’ in this way.
13. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

14. I have considered relevant law and statutory guidance including:
• The Children and Families Act 2014 (‘The Act’)
• The Special Education and Disability Regulations 2014 (‘The Regulations’)
• The Special Educational Needs and disability code of practice: 0 to 25 years (‘The Code’)
• The Special Educational Needs (Personal Budgets) Regulations 2014
• The Education Act 1996.
15. I have considered information provided by Ms X and the Council including:
• EHC Plans and annual reviews
• Correspondence and consultations with settings.
16. I have spoken to Ms X by telephone.
17. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
18. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

Relevant law and guidance

EHC Plans

19. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the tribunal or council can do this.

20. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act).

21. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must take place. Within four weeks of a review meeting, the council must notify the child’s parent of its decision to maintain, amend or discontinue the EHC Plan. Once the decision is issued, the review is complete. (Section 20(10) Special Educational Needs and Disability Regulations 2014 and SEN Code paragraph 9.176) 

22. If the decision is to amend the Plan, then the Council must both notify the parent of a decision to amend, and what the proposed changes are, within four weeks of the annual review meeting. R(L,M and P) v Devon County Council [2022]

23. The final EHC Plan must be issued as soon as practicable and within a further eight weeks of amendment notice. Therefore, councils must send the final EHC Plan within a maximum of twelve weeks of the annual review meeting.
24. There is a right of appeal to the Tribunal against:

• the description of a child or young person’s special educational needs, the special educational provision specified, the school or placement, or that no school or other placement is specified;
• an amendment to these elements of an EHC Plan
• a decision not to amend a Plan after a review.

Personal education budgets

25. A Personal Budget is the amount of money the council has identified it needs to pay to secure provision in a child or young person’s EHC Plan. One way that councils can deliver a Personal Budget is through direct payments. These are cash payments made to the child’s parent or the young person so they can commission the provision in the EHC Plan themselves.
26. A child’s parent or the young person has the right to request a Personal Budget when the council has completed an EHC needs assessment and confirmed it will prepare an EHC Plan. They may also request a Personal Budget during a statutory review of an existing EHC Plan. Where a request is made the Council must consider it. (Regulation 4 of The SEN (Personal Budget) Regulations)
27. If the council refuses a request for a direct payment, it must set out the reasons in writing and inform the child’s parent or the young person of their right to request a formal review of the decision.
28. The council’s (and health commissioning body’s where relevant) duty to secure or arrange provision specified in EHC Plans is only discharged through a direct payment when the provision has been acquired for, or on behalf of, the child’s parent or the young person.

Alternative provision

29. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
30. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
31. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
32. This applies to all children of compulsory school age living in the local council area, whether or not they are on the roll of a school. (Statutory guidance ‘Alternative Provision’ January 2013)
33. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
34. The Courts have found that it is a judgement for the council to decide whether a child’s health needs prevent them from attending school and to decide what weight to give medical evidence. (R (on the application of D (by his mother and litigation friend)) v A local authority [2020])
35. The Department for Education non-statutory guidance (DfE School Attendance: guidance for schools, August 2020) states all pupils of compulsory school age are entitled to a full-time education. In very exceptional circumstances there may be a need for a temporary part-time timetable to meet a pupil’s individual needs. For example, where a medical condition prevents a pupil from attending full-time education and a part-time timetable is considered as part of a re-integration package. A part-time timetable must not be treated as a long-term solution. 

36. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
37. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible;

38. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, they should retain oversight and control to ensure duties are properly fulfilled.

Social care

39. The Children Act 1989, section 17, requires councils to safeguard and promote the welfare of ‘children in need’ in their area, including disabled children, by providing appropriate services for them. All disabled children are regarded as ‘children in need’ and entitled to an assessment under section 17.
40. The Chronically Sick and Disabled Person’s Act (CSDPA) 1970, section 2, requires councils, when undertaking an assessment of a child under section 17 of the Children Act 1989, to consider whether it is necessary to provide support of the type referred to in section 2.
41. Services which can be provided under section 2 CSDPA include:

• practical assistance in the home including home based short breaks / respite care;
• recreational / educational facilities including community based short breaks; and
• travel and other assistance.

42. The Children Act 1989 (Schedule 2 paragraph (6)(1)(c)) and Breaks for Carers of Disabled Children Regulations 2011 requires councils to provide a range of services designed to assist family carers of disabled children to continue to provide care, or to do so more effectively, by giving them breaks from caring. These services must include a range of daytime care, overnight care and leisure activities. This range of services must be set out in a ‘short breaks statement’ and include details of any eligibility criteria.
43. The Children Act 1989 (as amended by the Children and Families Act 2014) places specific duties on councils to assess the needs of carers with parental responsibility for disabled children as well as young carers. Councils have an obligation to assess parent carers on the ‘appearance of need’ (Children Act 1989, section 17ZD/E), or if an assessment is requested by the parent, and to provide a written copy of the assessment to the parent carer.

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What I found

44. Y was put on a part-time timetable by school in 2021. This is referred to in an annual review of the EHC Plan held by the School in Spring 2021. The Council’s decision after the review meeting was not to amend the EHC Plan. It issued a decision letter giving Ms X appeal rights.
45. Ms X did not complain about the reduced timetable at that time or appeal the Council’s decision to keep the Plan the same.
46. From Autumn 2021 a long-term reduced timetable was introduced by the School with Y to attend Tuesday to Friday only and finishing at 2pm each day.
47. In Spring 2022 the school held the next annual review meeting. The School recorded it had not heard from the Council after the previous review. Y was not managing to attend until 2pm and was going home before lunchtime.
48. The Council did not issue a decision after the review with appeal rights but did prepare a draft amended EHC Plan in Summer 2022. Therefore it must have decided to amend the Plan. This Plan was not finalised, so Ms X did not gain a right of appeal.
49. The next review of the EHC Plan took place in early 2023. Y was still on the same part-time timetable of Tuesday to Friday, short days. Y’s School recommended a new setting be sought as it was not able to meet Y’s needs. The Council records show the caseworker was to amend the Plan following the request for a new setting. A further draft Plan was issued in late Spring 2023, four months after the review meeting.
50. Y stopped attending school completely by Easter 2023.
51. In Summer 2023 Y was re-referred to a learning disability /family support service and to Early Help. Early Help believed the other service was providing a ‘bespoke package’ and so closed the case instead of considering social care needs further. The other service corrected this inaccurate assumption in August 2023, but the case remained closed to Early Help / social care.
52. In the Summer holidays of 2023, the Council consulted alternative settings. This was seven months after the School said it could no longer meet Y’s needs. Ms X wanted to find a long-term placement where Y could remain post-16. The Council agreed and said it would put interim provision in place.
53. While the Council consulted schools, and funding for interim provision was agreed, nothing was put in place. The Council’s panel noted the EHC Plan needed updating.
54. Ms X requested a personal budget in Autumn 2023.
55. Ms X made a formal complaint at the start of 2024, although she had been chasing the final EHC Plans since Summer 2022. Ms X complained about delay and poor communication.
56. The Council’s stage one complaint response acknowledged Y was not attending school and had become unable to go out alone, becoming very dependent on Ms X. The Council said it was challenging the School about whether there was anything further it could offer. The Council said a new caseworker had been allocated to the case in late Spring 2023 and was working ‘consistently’ on Y’s case, but the Council was not able to ‘identify a suitable education offer’. The Council agreed the EHC Plan had remained in draft and should be finalised. It said the School would remain responsible for safeguarding and implementing any learning or behaviour programmes. The Council had identified alternative provision for which Y was on the waiting list. The Council also offered to refer to social care. It said it would issue the final EHC Plan within two weeks.
57. The final EHC Plan was not issued for a further four and a half months.
58. Ms X was dissatisfied with the complaint response and continued delay. The Council held a meeting with Ms X in Spring 2024. It acknowledged the final EHC Plan had not been issued and Ms X had been denied a right of appeal since 2021. The Council acknowledged Y had not received fulltime education for two years and Ms X said that school staff visited a few times a week for only 5 to 10 minutes.
59. The Council acknowledged Ms X’s request for a personal budget had not moved forward. It said it would not pay for a fulltime personal assistant to support Y with educational activities but said it would consider a mentor to support some activities, provided these met the provision in the EHC Plan. The Council agreed to commission interim provision while waiting for a long-term place to become available. The Council declined to complete a stage two complaint investigation as it said this would not add to what was discussed at the meeting.
60. The final EHC Plan was issued two and a half months after the complaint meeting. It named Education Otherwise than at School (EOTAS) under s.61 of the Act as the provision to be made for Y. Y was then removed from the school roll.
61. Ms X had a right of appeal about the final EHC Plan issued in Summer 2024, which she has not used.
62. In its response to my enquiries the Council told me it agreed a personal budget in late Spring 2024 and a partial payment was made before the Summer holidays.
63. Documents show EOTAS was gradually being put in place in Autumn 2024.
64. Social care did carry out a children and family assessment in mid-2024 and agreed some funding for social and leisure activities.

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What I have and have not investigated

Scope of investigation

65. I have exercised discretion to consider the period from when the Spring 2022 annual review should have been completed. Ms X has been raising concerns about delay in finalising the EHC Plan since 2022 and Ms X was denied a right of appeal in 2022 and 2023. While Ms X did not formally complain before 2024, I am satisfied the Council was aware of concerns from 2022 and the delay was due to fault by the Council, not Ms X.
66. I have not investigated the part-time timetable in 2021, I consider Ms X could have complained or used her right of appeal after the 2021 review meeting if she was dissatisfied with the level of education at that point.
67. I have not investigated the content of the EHC Plan or the alleged refusal to include recommendations. The content of an EHC Plan has a right of appeal which we would expect Ms X to use if she disagreed with the wording in the final Plan.
68. I have investigated up to the date of the final EHC Plan in Summer 2024. If the Council has delayed in securing provision in the Summer 2024 EHC Plan or failed to provide education after that date, I consider Ms X would need to give the Council the opportunity to consider that complaint before the Ombudsman could do so. (Local Government Act 1974, section 26(5))
69. The period I have investigated is May 2022 to June 2024.

Fault

70. The Council failed to complete the 2022 review before the 2023 review meeting was held. This was fault and denied Ms X a right of appeal. The Council should have issued a final amended EHC Plan within twelve weeks of the 2022 review meeting, it was over two years late in issuing the final Plan. This was unacceptable delay and was fault.
71. There was further delay after Ms X raised a formal complaint. The Council said the final EHC Plan would be issued within two weeks, but then delayed by 4.5 months. It failed to complete complaint actions it had agreed. This was fault.
72. The Council told Ms X at a complaint meeting in Spring 2024 the caseworker had worked consistently on the case since Spring 2023. This was inaccurate. The Council did not consult schools until 7-8 months after the existing school said it could not meet needs and never found an alternative school placement. The Council agreed to put in place interim provision in Summer 2023, but this was still not in place a year later. The Council said it would issue the final Plan in mid-2023 but did not do so for a further year. Ms X requested a personal budget in Autumn 2023, the Council did not decide this for 5 to 6 months.
73. These lengthy delays took place against a backdrop of a child who had not received fulltime education since early 2021 and had been out of school completely since Easter 2023. The Council should have acted with far more urgency.
74. The Council was aware of the part-time timetable from at least the time of the 2021 annual review. By the following review in Spring 2022 it was clear the part-time timetable was being used as a long-term solution and was not being successful at reintegrating Y into fulltime education. The Council should have completed the 2022 review by early May 2022 and should have considered if it had a duty to provide s.19 education at that time. S.19 education can apply even if a child is attending school part-time. There may still be a duty on the Council to secure alternative provision to make the education up to fulltime.
75. I have seen no evidence the Council made a decision on s.19 education in 2022. This was fault. As a result, Y received part-time education only between May 2022 and Easter 2023. From the start of 2023 the Council was aware the School believed it could not meet Y’s needs.
76. From Easter 2023 Y stopped attending school completely. Y received very short visits from school but this does not equate to a suitable education. In the Council’s complaint response the Council sought to put the responsibility for providing s.19 education, as well as special educational provision, on the school. It said Y would receive learning and behaviour programmes. There is no evidence these were delivered before the Council gave this advice (between Easter 2023 and Spring 2024), or afterwards. There seems to have been no basis for the Council to make this statement.
77. The s.19 duty rests with the Council. It cannot delegate this duty. It may ask or expect a school to provide alternative education but if that does not happen the Council must step in and provide it itself.
78. Y received virtually no education between Spring 2023 and Summer 2024. This was fault by the Council. The Council started to consider interim provision in mid-2023 but had not secured this a year later. This is unacceptable delay and is fault.
79. Throughout this time Y did not receive the special educational provision in the EHC Plan under s.42 of The Act. This is fault.
80. The Council failed to acknowledge its s.19 or s.42 duties in the complaint responses or offer a remedy. This is fault.
81. Ms X requested a personal budget in Autumn 2023 to arrange provision herself. The EHC Plan was in draft so this was an appropriate time to make the request. The Council should have made a decision and shared this with Ms X promptly. It should also have provided her with a final Plan with the budget set out in Section J of the Plan promptly. It took nine months from Ms X’s request to do this. This is fault.
82. The Council told Ms X it would not pay for a fulltime personal assistant to support Y in educational activities and any activities would have to be based on provision in the EHC Plan. The Council cannot fetter its discretion in this way. Y was entitled to fulltime education. If Y needed fulltime adult support to attend education, then the Council would be responsible for funding this. The Council had a duty to provide access to ordinary education under s.19 Education Act as well as special educational provision under s.42 of The Act.
83. The Council eventually provided a final Plan in Summer 2024. Ms X had a right of appeal about the provision in the Plan which we would have expected her to use if she was dissatisfied with the level of provision.
84. There was delay in the Council referring Ms X and Y to social care for a child and family assessment. It should have been apparent by the 2022 annual review that there may be unmet social care needs due to Y’s inability to attend school fulltime and the wider impact this had on the family, including Ms X as a working parent carer. The Council has a duty to assess parent carers on the appearance of need. There was a referral to Early Help in mid-2023, but this was closed due to an incorrect belief another service was providing a bespoke package of support to the family. Early Help failed to reopen the case when it was informed the other service was not providing the level of support that had been assumed. This was fault.
85. Social care did not provide support until mid-2024. On the balance of probabilities, I find the problems identified by social care in 2024 were present in previous years.
86. There were long gaps when Ms X was not kept updated and the Council’s complaint response did not provide an accurate picture or address all the relevant issues. This was fault.
87. The Ombudsman has made similar findings about EHC Plan delays and failure to provide s.19 education against this Council over recent years. Previous recommendations should have picked up the fault and delay in this case. These matters should also have been identified by the Council through its own complaint process and remedied upstream.
88. OFSTED carried out an Area Inspection of the Council in November 2023 which led to several priority actions to improve the timeliness of EHC plans and annual reviews. The Department of Education carried out a ‘deep dive’ into the Council’s EHC statutory processes in July 2024 to assess the Council’s progress towards improving its SEND service.

Injustice

89. I have considered injustice for the period May 2022 to June 2024.
90. Y received only part-time education between May 2022 and Easter 2023. Y became increasingly disengaged from education and their mental health was affected. Y became unable to go out alone and socially isolated.
91. Y received effectively no education between Easter 2023 and July 2024.
92. Ms X was denied appeal rights between 2022 and 2024.
93. Where fault has resulted in a loss of educational provision, we will usually recommend a remedy payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The figure should be based on the impact on the child and take account of factors such as:
• the child’s special educational needs;
• any educational provision that was made during the period; and
• whether additional provision can now remedy some or all of the loss.
94. That Y was not in receipt of fulltime education affected Ms X as a parent carer and the rest of the family. Ms X struggled to maintain her work and had to rely on family to provide additional care for Y.
95. The family missed out on social care support for two years.

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Agreed action

96. Within four weeks of my final decision:
• The Council will apologise to Ms X and Y for the faults identified.
• The Council will pay Ms X, on behalf of Y, £1500 for loss of education between May 2022 and Easter 2023 (one year of part-time education).
• The Council will pay Ms X, on behalf of Y, £8000 for loss of education between Easter 2023 and July 2024 (four terms).
• The Council will pay Ms X £2000 to acknowledge the impact of the fault on her over a two year period, including the absence of social care support to the family, and the time and trouble caused.
97. The Council will provide us with evidence it has complied with the above actions.

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Final decision

98. There was fault and delay by the Council in failing to update EHC plans after annual reviews and failing to ensure a child received suitable fulltime education over several years. There was also fault in the complaint handling and poor communication. This caused loss of education and unnecessary distress, uncertainty, time and trouble to the family. I am satisfied the agreed actions set out above represent a suitable remedy for the injustice caused. The complaint is upheld.

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Investigator's decision on behalf of the Ombudsman